Dixon and Another v Hodgson and Others
| Jurisdiction | England & Wales |
| Judge | Black LJ,Sir D Keene,Longmore LJ |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1612 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2011 |
| Docket Number | Case No: B2/2011/0482 |
[2011] EWCA Civ 1612
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARLISLE COUNTY COURT
RECORDER CLAYTON
6CA00017
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lady Justice Black
and
Sir D Keene
Case No: B2/2011/0482
Mr Stephen Pritchett (instructed by Ward Hadaway) for the Appellants
Mr Edward Bartley Jones QC & Ms Sara O'Brien (instructed by Cartmell Shepard) for the Respondents
Hearing date : 21st November 2011
This appeal arises out of a boundary dispute between Mr and Mrs Dixon ("the appellants") who own a property referred to in the proceedings, for historical reasons, as the Bungalow Site and Mr and Mrs Hodgson ("the respondents") who own a property known as The Arches.
The Arches is the more northerly property of the two and has an entrance leading north onto the highway. In the south, it adjoins the Bungalow Site. Green Farm lies to the east of both properties. Access to the Bungalow Site from the road runs south along a strip of land beside the eastern boundary of The Arches. It reaches the northern boundary of the Bungalow Site at around the position of an embankment/border which runs east/west. Within the embankment/border, also running east/west, is a low brick wall ("the low wall") punctuated at intervals by brick pillars which have fencing panels between them. At the eastern end of this structure, there are two brick pillars ("the gate posts") on which the appellants would like to affix gates opening northwards towards the respondents' house. The land inclines uphill towards the south and for that reason it would not be possible to have gates opening southwards from the gate posts towards the appellants' own bungalow. The dispute between the parties has these gates at its heart, each side laying claim to the land over which they would open if hung on the existing gate posts.
Proceedings originally began with a claim about drainage brought by the appellants against both the respondents and the owners of Green Farm. The details of that claim are immaterial to the instant appeal but it was in their defence and counterclaim to the drainage claim that the respondents raised the question of the boundary between their property and the Bungalow Site, claiming a declaration that the true boundary between The Arches and the Bungalow Site was at the centre of the low wall and seeking an injunction to prevent the appellants erecting gates swinging towards The Arches and rectification of the title plans.
The appellants in their Reply and Defence to Counterclaim asserted that the boundary lay further north. I will explain in more detail where they said it was when I come to describe more of the features of the site but, in contrast to the respondents' line, it was a line visible only in the mind's eye and, whilst the appellants identified reference points for its start and the direction of travel, they did not correlate the line itself with physical features of or on the land.
The dispute was determined by Mr Recorder Clayton who, on 26 August 2010, made an order that the boundary was along the northern face of the low wall as the respondents had contended. It is against that order that the appellants principally appeal. They also appeal against the order for costs that the Recorder made although they recognise that that appeal can only succeed if the substantive appeal succeeds.
The basis for the substantive appeal is that the Recorder applied the wrong legal test when determining the boundary or, if he applied the correct test, construed the documentary evidence incorrectly and drew the wrong factual inferences from the documents and the physical features on site.
In order to understand the issues in the appeal, it is necessary to know what physical features there are on the land. As one leaves the highway at the north, entering the land belonging to The Arches, one comes first to the front of The Arches. The drive passes to the east of that property and leads down its eastern boundary where there is a hedge dividing The Arches from Green Farm. You come next to the double garage belonging to The Arches which is set crossways on the site with its rear very near the western boundary and its south wall not far from the Bungalow Site. To the south of the garage is the land with the low wall on it. The low wall has landscaped land on both sides of it. On the respondents' side, it has a simple border which you would have on your left as you drove into the respondents' garage. In older photographs dating from the time when the two properties, then in common ownership, were transferred to the Hodgsons and the Dixons, this appears as a grassy embankment with daffodils in it; in later photographs it appears that it might be rather less landscaped. It will be convenient to call this feature simply "the embankment". On the appellants' side, there is a lowish brick retaining wall which forms a raised border ("the raised bed") running in an apparently straight line parallel to the low wall for much of its length but ending in a half moon at nearly the point at which the west gatepost is situated. The raised bed on the south side of the low wall appears to be narrower than the embankment on the north side. The east gatepost is on the border with Green Farm. Immediately to the north of it there is a gate running north/south, hinged at its south end right next to the east gatepost, which leads into Green Farm ("the Green Farm gate").
The appellants argued that the boundary started at the northern end of the Green Farm gate and ran from there westwards in a straight line. This would put it at, or nearly at, the bottom of the embankment (its northerly edge) and would include in the Bungalow Site a strip of land stretching right across its northern border and, most importantly, of sufficient width to accommodate northward opening entrance gates hung on the existing brick gateposts.
History
Before December 1989, Green Farm and the Bungalow Site were owned by Margaret Edith Inglis and The Arches by Dr and Mrs Tiplady. In December 1989, Dr and Mrs Tiplady became owners of all three pieces of property. In due course, The Arches and the Bungalow Site were transferred to Mr and Mrs Brierley and Green Farm to its current owners, the Norgroves. In 2002, the Brierleys obtained planning permission for the construction of a dormer bungalow and double garage on the Bungalow Site. They began to build the bungalow. However, in 2003, they decided to sell both The Arches and the Bungalow Site with the partially finished bungalow on it.
The Arches was sold off first, to the Hodgsons, by a Transfer dated 16 October 2003. The Bungalow Site was sold a few days later to the Dixons by a Transfer dated 21 October 2003. The Dixons went on to complete the bungalow and associated external works, utilising the foundations which were already in place when they bought the property. It subsequently came to light that the foundations were not in fact in the position specified in the plan by which planning permission had been obtained but further south.
It was common ground that the disputed boundary was formed on the first sale by the Brierleys, that is the sale of The Arches. At this time, the low wall and the retaining wall of the raised bed were in place as was the Green Farm gate. The contemporary photographs also show the embankment meeting the gravel drive by The Arches' garage. The gateposts were not yet built and the brick pillars and fencing had not been erected along the top of the low wall.
The Transfer of The Arches
The Transfer shows the property transferred as "The Arches" (together with its postal address) and says that "The Property is defined on the attached plan and shown edged red". There are additional provisions which refer to the "Retained Land" which "means all the land (other than the Property) in respect of which the Transferor is or was the registered Proprietor under the Title Number [CU146642] and which is shown for identification edged blue on the Plan"; the retained land is therefore the Bungalow Site. There are obligations placed on both the Transferor and the Transferee. Each is subject to a covenant "To keep the garden or gardens forming part of the [Property/Retained Land] properly planted and in a good state of cultivation and order and in a clean condition and free from weeds". Amongst the Transferees' (the Hodgsons') covenants is a covenant (clause 13.5 k)) "To maintain in good repair and condition the fence on the boundary of the Property marked with an inward "T" on the Plan."
The "attached plan" ("the Transfer plan") which was meant to define the property transferred was problematic. For a start, all that could be produced to the Recorder was a copy of that plan or possibly even a copy of a copy (a copy of it is attached to this judgment marked "A"). But the main problem was that the scale of the plan and the extent and thickness of the colouring on the material boundary totally obliterated the boundary itself. This led the Recorder to find that he was "unable to clearly determine the position of the boundary from the Transfer" because the deficiencies of the plan made it "absolutely impossible to determine the precise position of the boundary" by reference to it.
Other plans were produced which the Recorder listed in his judgment. Most were not included in the appeal bundle. The one to which our attention was invited was a plan which has been referred to by the appellants as a "cleaner version" of the Transfer plan (page 71 of our bundle, a copy...
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